Now that Mark O'Mara has made clear he will be moving for an immunity hearing under traditional self-defense, let's have a thread discussing traditional self-defense vs. stand your ground, what a hearing entails and which one is a better or easier fit for George Zimmerman.

If you've already posted your thoughts or questions in another thread but want to bring them here, it's okay to repost.

The statutes:

776.012 Justiifable Use of Force (http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.012.html)

I know this has been discussed before but it's my understanding that 776.013 is the Home Invasion counterpart to 776.012 (probably a moot point now that MO'M will be using .012)

They seem to be otherwise redundant?They both include the 'no duty to retreat' (StandYourGround) language.

Also, the news media seems to be conflating SYG with the immunity hearing. A lot of confusion out there.Fox News - http://tinyurl.com/9b36qwz

I know what you mean. Every time I think I have a handle on it, I don't. He refers to 776.032 but I thought that was purely a SYG issue. Is the Self-Defense with immunity under the same clause? I am no longer sure.

Also, the news media seems to be conflating SYG with the immunity hearing. A lot of confusion out there.Fox News - http://tinyurl.com/9b36qwz

I just started a topic about individuals in the media getting it wrong (I've confirmed that they have it wrong). I'm not sure if NBC/MSNBC/CNN/etc have opined on it, but I did mention FNC's analysts. That thread is here: http://forums.talkleft.com/index.php/topic,2159.msg101301.html#msg101301 And I do apologize, I didn't see your comment here until after I had made that thread.

I just started a topic about individuals in the media getting it wrong (I've confirmed that they have it wrong). I'm not sure if NBC/MSNBC/CNN/etc have opined on it, but I did mention FNC's analysts. That thread is here: http://forums.talkleft.com/index.php/topic,2159.msg101301.html#msg101301 And I do apologize, I didn't see your comment here until after I had made that thread.

That's fine, your thread is about the legal anlaysts and media. It's fine for it to have its own thread.

I am reposting this from TL. The prosecution could conceivably make this argument in order to get 776.041 to be the statute used at the immunity hearing instead of 776.012. It still confuses me as to why that would hurt Zimmerman's chances for being granted both criminal and civil immunity.

Could reaching for his cellphone make Zimmerman the "aggressor"? Martin could have interpreted it as an imminent physical threat since he didn't know what Zimmerman was reaching for. It seems to satisfy the definition, based on 776.012, that Jeralyn lays out.

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Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ, Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman.

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

If I'm walking down a busy street, am I justified in attacking anyone I see putting a hand in his pocket?

Not anyone, but sometimes the actions, including body language, of the other person might justify it. This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

From my layperson understanding, the standard of evidence to argue to a jury that a certain statute applies is some evidence. For the jury, the standard would be normal - beyond a reasonable doubt - that, for instance, Zimmerman was the aggressor and that he had a avenue of retreat or that he was not in reasonable fear of death or great bodily injury.

In an immunity hearing, the burden would be perponderance of evidence for Zimmerman to show he was not the aggressor and that he had reasonable fear.

Could reaching for his cellphone make Zimmerman the "aggressor"? Martin could have interpreted it as an imminent physical threat since he didn't know what Zimmerman was reaching for. It seems to satisfy the definition, based on 776.012, that Jeralyn lays out.

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Not anyone, but sometimes the actions, including body language, of the other person might justify it. This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

If both parties were voluntarily at the 'T', I don't see how reaching for a cell phone would constitute an aggressive act. IT certainly wouldn't be an illegal act, so in regards to the SYG law, I'd think he would be under its protection (anyone who is in a place they have a right to be and not engaged in any illegal activity). Also, we are getting the testimony about reaching for the phone from GZ who also states that he tells TM he doesn't have a problem and is trying not to confront TM. If you take hist statements around the time he reached for his cell phone together, I don't see how it could be construed to be an act that makes him the primary aggressor.

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Provocation (sufficient to justify the other person resorting to the use of force) need not include physical contact. If two people are in a verbal argument, and anger is present, and one person moves in a way that a reasonable person would take as preparation to use force, counterforce is justified. Another scenario is a person throwing things at you, and yet another is a reasonable belief that a person is reaching for a gun or knife.

Nearly all people have a pretty good sense of what being "provoked enough to be justified in using force" consists of. It's those situations where you can use violence, and won't get in trouble for it.

Serino suggested to Zimmerman that Zimmerman's pocket reach might have set Martin off on his attack. I don't recall if Serino offered an opinion about whether the attack was justified. IIRC, Serino was looking for some reason beyond "just for kicks" that would explain Martin throwing the first punch. I don't feel any urge to probe that, as Martin spend a substantial length of time restraining Zimmerman in a physical predicament. That is, the issue goes beyond "first punch" and into a minute of physical superiority. Whatever the reason (for physical attack) was, it was reason enough for both the initial punch and the minute of restraint. Doesn't seem like the reason would be related to whatever Zimmerman was reaching in his pocket for.

That section of statute you cite allows an initial aggressor to "back off" the threat or use of force (which, in the universe of scenarios might be a non-contact action, for example a "Mexican standoff") and regain the ability to have legal justification for (later) use of force in self defense.

I don't recall if Serino offered an opinion about whether the attack was justified.

2/29-1, 21:06-21

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Problem being, is that, what if his, in his mind's eye, which I can't get into because he's passed, that he perceived you as a threat? OK? He perceives you as a threat, he has every right to go and defend himself, especially when you reach into your pocket to grab a cell phone.

Thanks for the Serino remark. I don't see that as opining that Martin would be justified in throwing the first punch, because Serino starts with an "if" conditional. "If" Martin perceives Zimmerman as a threat (and Serino doesn't opine whether that perception would be justified, that is, whether or not a reasonable person in Martin's shoes would perceive Zimmerman as a threat. If Martin approaches Zimmerman in order to ask "Do you have a problem?", then Martin does not perceive Zimmerman as a physical threat.

Otherwise, Serino is making an approximate restatement of the law. A person who reasonably apprehends an unlawful physical threat is justified in using force in self defense. The amount of force is limited to that necessary to stop the threat.

Serino does make a valid point. In some situations, reaching into a pocket is sufficient action to justify the use of force. There are a few cases of people in heated argument, and a reach into the pocket is taken (or mistaken) as going for a weapon.

I think Serino was honestly seeking some basis for Martin to act - even if it was an unreasonable one (unreasonable under the law, as in a reasonable person would not start blows in that spot) - because he doesn't want to be forced to adopt a conclusion that Martin was acting like a thug.

I think I understand the usual model of a jury going through the elements of a charge and voting whether they believe each of them beyond a reasonable doubt in order to return a verdict of guilty. The various relevant statutes of Florida 776 seem instead to require a traversal of a flowchart where it is unclear what the degree of certainty of the various decisions should be. I will try to imagine what might happen during the forthcoming immunity hearing as the judge tries to get through the flowchart. The starting point seems to be at .041.

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776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or(2) Initially provokes the use of force against himself or herself, unless:(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

By mutual agreement, (1) is first dispensed with as irrelevant and the parties start discussing (2). The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant.

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776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

Despite protestations from the defense, the judge decides that Martin felt he had to stop Zimmerman by using a non lethal punch to the snoot and the court starts considering (2) of .041. The defense claims that both (a) and (b) of (2) more likely than not happened and the judge agrees. This ruling means that the proceedings can get off .041 and move onto "the preceding sections of this chapter" which I guess are .012, .013, and .032.

The defense then points out that in finding .041(2)(a) was satisfied the judge already found it more likely than not that the relevant section of .012

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However, a person is justified in the use of deadly force and does not have a duty to retreat if:(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;

holds and the procedings can ignore .013 and goto ::) .032 since either triggers that statute.

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776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless irrelevant rest omitted

Judge says humpf! I don't have to make any decision now. I am forced to grant Zimmerman immunity by this statute and now this hearing is over.

I haven't the foggiest idea if Florida will allow the judge to conduct the hearing like this. However, if it ends up that Zimmerman is not granted immunity, I seriously doubt that a jury will be asked to decide at each decision point what the next step is to be before going to the next box on the chart.

I really don't see how the prosecution can say George provoked Trayvon's punch by reaching for his phone. There is nothing to support it. It is more of a "what if" scenario at best. Trayvon's perception of George reaching for his phone can only be proven by Trayvon testifying which can't happen. It would be quite a stretch on the part of the prosecution even with DeeDee's testimony.

By mutual agreement, (1) is first dispensed with as irrelevant and the parties start discussing (2). The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant. Despite protestations from the defense, the judge decides that Martin felt he had to stop Zimmerman by using a non lethal punch to the snoot and the court starts considering (2) of .041. The defense claims that both (a) and (b) of (2) more likely than not happened and the judge agrees. This ruling means that the proceedings can get off .041 and move onto "the preceding sections of this chapter" which I guess are .012, .013, and .032.

We agree with appellant that the jury instruction given by the trial court was inadequate to properly charge the jury in this case. The instruction stated that appellant could not defend herself with non-deadly force if she "initially provoked" the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word "provoked," as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant—no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

I really don't see how the prosecution can say George provoked Trayvon's punch by reaching for his phone. There is nothing to support it. It is more of a "what if" scenario at best. Trayvon's perception of George reaching for his phone can only be proven by Trayvon testifying which can't happen. It would be quite a stretch on the part of the prosecution even with DeeDee's testimony.

The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started. The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah" instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started. The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah" instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

That makes sense but it just seems that saying "he probably acted because of" is incredibly weak. It leaves room for so much reasonable doubt it wouldn't be worth saying. But I don't know how much of a burden the prosecution has in a case like this.

The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started. The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah" instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

Except that almost all of the evidence demonstrates TM was the one acting as the aggressor.

That was concerning an instruction to a jury where the beyond a reasonable doubt standard govern. I was considering whether the judge at the immunity hearing might use a different standard to say that that the first part of the condition following (2) in 776.041 is satisfied.

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The justification described in the preceding sections of this chapter is not available to a person who:(2) Initially provokes the use of force against himself or herself, unless:

In my hypothetical scenario of the SYG hearing, I let the judge worry about that. He could have said instead, "Let's look at the part after "unless" and see if one or both of (a) and (b) are satisfied.

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(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

If either is, the question of whether or not Martin was provoked by Zimmerman becomes moot." Since, in the scenario, he found both were, more likely than not, satisfied he never had to make a decision on the provokes part. Perhaps this explains O'Mara final comment at his recent news conference which indicates to me that he thinks 776.041(2)(a) is all important. Actually I think he has a good shot at also establishing (b)

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"We need to focus on what really happened. And it seems to be drilled down to, Did George act reasonably to protect himself from great bodily injury? That seems to be the issue. Let's get down to it".

In my hypothetical scenario of the SYG hearing, I let the judge worry about that. He could have said instead, "Let's look at the part after "unless" and see if one or both of (a) and (b) are satisfied. If either is, the question of whether or not Martin was provoked by Zimmerman becomes moot.

An act of provocation can be moot (I think a better word than "moot" is "overcome") for finding justified use of force, but it is not moot for finding immunity. It is an essential point to be negatived. Immunity does not attach to a person whose use of force was justified under 776.041, although the use of force in self defense can be justified under 776.041. Or, more simply, 776.032 immunity is not available to a person who provokes the use of force.

776.032 immunity is only available to a person whose use of force is covered by 776.012, 776.013, 0r 776.031 (not applicable here, this is use of force to defend somebody else).

An act of provocation can be moot (I think a better word than "moot" is "overcome") for finding justified use of force, but it is not moot for finding immunity. It is an essential point to be negatived. Immunity does not attach to a person whose use of force was justified under 776.041, although the use of force in self defense can be justified under 776.041. Or, more simply, 776.032 immunity is not available to a person who provokes the use of force.

776.032 immunity is only available to a person whose use of force is covered by 776.012, 776.013, 0r 776.031 (not applicable here, this is use of force to defend somebody else).

??? Counselor, in my Reply #16 of this thread. I went through, in detail, how a judge starting from 776.041 could get to 776.012 and then to 776.032 and grant immunity. Please explain where I messed up. Thanks.

I think your differences lie in the defining an "act of provocation". IF the act of provocation is an illegal act then that person is deemed the aggressor. Being the aggressor can still be overcome for self defense, but not immunity. If the act of provocation is simply a misinterpreted act (reaching for a cell phone), then its not an illegal act nor an act of provocation and you are not deemed the aggressor. It could be that it was an act that provoked a response, but if its not an illegal act, you can maintain a claim of immunity.

I do think there are circumstances where reaching into your pocket could be part of a set of actions that could legally make one the aggressor, but without other aggressive actions or language, I can't see any court finding that reaching for a cell phone is an act of provocation. I imagine the prosecution will try to argue that GZ was following TM and approaching him aggressively and that reaching for his cell phone in conjunction with his other aggressive acts made it an act of provocation.

??? Counselor, in my Reply #16 of this thread. I went through, in detail, how a judge starting from 776.041 could get to 776.012 and then to 776.032 and grant immunity. Please explain where I messed up. Thanks.

Your reply #17.

You messed up by first finding Zimmerman to have provoked the use of force, then finding his use of force justified under .041 (at which point you should be done), then jumping to .012 or .013 to find the same thing you already found, that the use of force (by Zimmerman) was justified.

Under .041, if a person claiming justified use of force provoked the use of force, you are stuck in .041. That section still allows the person to be justified in defending himself, but one who provokes the use of force in the first place doesn't get to jump out of .041.

Under .041, if a person claiming justified use of force did NOT provoke the use of force, then .041 doesn't apply to that person - go to .012, .013, or .031.

That was concerning an instruction to a jury where the beyond a reasonable doubt standard govern. I was considering whether the judge at the immunity hearing might use a different standard to say that that the first part of the condition following (2) in 776.041 is satisfied.

I still don't see how George reaching for his phone can be considered as something that shows George "provoked" Trayvon's attack. It seems to be cherry picking and not looking at the entire circumstances. George reaching for his phone was in response to Trayvon "coming out of the dark and asking him if he had a problem/why he was following him. Trayvon's actions seem far more likely to "provoke" a response and reaching for a phone is a very reasonable one. In my opinion, Trayvon's actions of returning from where he ran and confronting George make Trayvon the aggressor. When you consider Trayvon punched George, pinned him to the ground and hit his head on concrete it is clear Trayvon meant to do George serious harm. There is no doubt. Even if you isolate the incident of Trayvon seeing George reaching in his pocket there is no way of knowing what went thru Trayvon's mind beyond a reasonable doubt.

Except that almost all of the evidence demonstrates TM was the one acting as the aggressor.

Strictly speaking, most of the evidence doesn't bear on that question one way or the other. I know that's nitpicking, but your wording suggests that there is a lot of evidence that Martin was the aggressor. I would say there is almost none. What there is, Zimmerman's statements, are not credible in the opinion of many, including myself.

The same may be said of Dee Dee, whose statements are the only evidence Zimmerman was the aggressor.

Strictly speaking, most of the evidence doesn't bear on that question one way or the other. I know that's nitpicking, but your wording suggests that there is a lot of evidence that Martin was the aggressor. I would say there is almost none. What there is, Zimmerman's statements, are not credible in the opinion of many, including myself.

Don't overlook the inferences that can be made. Zimmerman called the police before embarking on his quest to keep Martin in sight, for example.

From your remark above, I take it you are inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman. You arrive at this point because you don't find Zimmerman credible, so when he says or implies that he did not provoke the use of force, you think that is probably a false statement.

Strictly speaking, most of the evidence doesn't bear on that question one way or the other. I know that's nitpicking, but your wording suggests that there is a lot of evidence that Martin was the aggressor. I would say there is almost none. What there is, Zimmerman's statements, are not credible in the opinion of many, including myself.

The same may be said of Dee Dee, whose statements are the only evidence Zimmerman was the aggressor.

No.

Zimmerman is the one with the injuries. There are witnesses that put TM on top of GZ. GZ called the police asking for help. GZ was screaming for help--picked up on the 911 calls. Etc.

I understand that you don't find Zimmerman credible, but you don't have to like him or even really believe him to analyze the evidence available.

And your problem is you have no evidence to back up your theory. What little there is backs up GZ.

Except that almost all of the evidence demonstrates TM was the one acting as the aggressor.

edited for Deb

Except almost all of that subset of the evidence which concerns who started it is what Zimmerman says, and if the state were willing to concede all of his claims they'd be hard pressed to justify having brought charges in the first place.

Which they may be anyway, although due less to evidence and more to a lack of it.

That makes sense but it just seems that saying "he probably acted because of" is incredibly weak. It leaves room for so much reasonable doubt it wouldn't be worth saying. But I don't know how much of a burden the prosecution has in a case like this.

Since the state wasn't there they aren't able to say Martin did this or didn't do that, but the state, it would seem most likely, will try to put the best spin on anything he did or didn't do.

Except almost all of that subset of the evidence which concerns who started it is what Zimmerman says, and if the state were willing to concede all of his claims they'd be hard pressed to justify having brought charges in the first place.

Which they may be anyway, although due less to evidence and more to a lack of it.

You messed up by first finding Zimmerman to have provoked the use of force,

I had my hypothetical judge finding it more likely than not that Zimmerman provoked the use of force against him by Martin by applying .012 to justify Martin's use of force, a definition of provoking that Jeralyn has used.

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776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

It certainly is reasonable, but perhaps not more likely than not, that Martin reasonably believed he had to do something to prevent Zimmerman getting whatever it was out of his pocket. I am unclear (and keep on asking) what standard of proof is needed for a judge to make such an intermediate decision at an immunity hearing. But let's continue the hypothetical with him making it.

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then finding his use of force justified under .041 (at which point you should be done), then jumping to .012 or .013 to find the same thing you already found, that the use of force (by Zimmerman) was justified.

Under .041, if a person claiming justified use of force provoked the use of force, you are stuck in .041. That section still allows the person to be justified in defending himself, but one who provokes the use of force in the first place doesn't get to jump out of .041.

Under .041, if a person claiming justified use of force did NOT provoke the use of force, then .041 doesn't apply to that person - go to .012, .013, or .031.

I don't follow you because 0.41 is quite explicit in saying

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776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or(2) Initially provokes the use of force against himself or herself, unless:

That unless is my whole point. Even if Zimmerman is deemed by the judge to be the initial provoker of force against himself, the previous sections of chapter 776, which include .012 and .032, are apparently available to Zimmerman if either of the 2 unless conditions (a) and (b) are found to apply. You haven't addressed the issue of why they don't.

I don't follow you because 0.41 is quite explicit in saying That unless is my whole point. Even if Zimmerman is deemed by the judge to be the initial provoker of force against himself, the previous sections of chapter 776, which include .012 and .032, are apparently available to Zimmerman if either of the 2 unless conditions (a) and (b) are found to apply. You haven't addressed the issue of why they don't.

I addressed it. You didn't understand my explanation.

.041 has a mess of language following its own "unless." It doesn't say "unless 776.012 or .013 or .031 applies." If it did, I think that, it wouldn't make sense, IMO. It wouldn't make sense because it would be saying "An aggressor can;t avail himself of the preceding sections unless he can avail himself of the preceding sections." Which is the wording you are imputing via your application of "unless."

I'm not saying a person stuck in .041 can't be justified in using force for self defense. I expressly said that person CAN be found justified in using force in self defense. But that justification has to be by the terms of .041.

.041 has a self contained self defense justification for a person who provokes the use of force. It's different from the self defense justification in .012, .013 and .031, all of which are available to those who don't provoke the use of force.

I agree with you. I just don't see how they will be able to support their claims.

If you check the thread on unreleased discovery material, it seems that Bernie de la Rionda and friends had another stab at Witness 2 in an interview that has not been released yet. That is the one who thought, at one time, she saw shadows running. Bernie mentioned this again at the second bond hearing as some sort of proof that Zimmerman chased Martin. I know it sounds ridiculous but that may be, along with Zimmerman's testimony, the entire prosecution case. It is inconceivable to me that DeeDee will make an appearance in court. They can't drop the case until after the Republican Convention in Tampa. If they do it after that, riots might help the Republicans in November.

If you check the thread on unreleased discovery material, it seems that Bernie de la Rionda and friends had another stab at Witness 2 in an interview that has not been released yet. That is the one who thought, at one time, she saw shadows running. Bernie mentioned this again at the second bond hearing as some sort of proof that Zimmerman chased Martin. I know it sounds ridiculous but that may be, along with Zimmerman's testimony, the entire prosecution case. It is inconceivable to me that DeeDee will make an appearance in court. They can't drop the case until after the Republican Convention in Tampa. If they do it after that, riots might help the Republicans in November.

.041 has a mess of language following its own "unless." It doesn't say "unless 776.012 or .013 or .031 applies." If it did, I think that, it wouldn't make sense, IMO. It wouldn't make sense because it would be saying "An aggressor can;t avail himself of the preceding sections unless he can avail himself of the preceding sections." Which is the wording you are imputing via your application of "unless."

I'm not saying a person stuck in .041 can't be justified in using force for self defense. I expressly said that person CAN be found justified in using force in self defense. But that justification has to be by the terms of .041.

.041 has a self contained self defense justification for a person who provokes the use of force. It's different from the self defense justification in .012, .013 and .031, all of which are available to those who don't provoke the use of force.

So what does "The justification described in the preceding sections of this chapter is not available .....unless mean? If it doesn't mean that if (a) or (b) hold, then the preceding sections, .01 to .040, are available to Zimmerman, then what did the person who wrote the law have in mind? Why hasn't the law been thrown out or amended to make sense?

So what does "The justification described in the preceding sections of this chapter is not available .....unless mean? If it doesn't mean that if (a) or (b) hold, then the preceding sections, .01 to .040, are available to Zimmerman, then what did the person who wrote the law have in mind? Why hasn't the law been thrown out or amended to make sense?

It does mean "unless (a) or (b)". It does not mean "unless .012, .013, .031." IOW, it means that the use of force is not justified [to one who provokes], unless (a) or (b). The criteria in (a) and (b) are more restrictive, in a sense, than the criteria in .012, .013, and .031. One who provokes is not entitled to "stand ground and use force," but must either try to extricate or capitulate. IOW, a person who provokes must attempt to extricate, or must de-escalate the use of force - and THAT just to obtain the right to use force in self defense.

A person who provokes the use of force is not justified in the use of force in self defense, unless (a) or (b), and if (a) or (b), then their use of force in self defense is justified.

It does mean "unless (a) or (b)". It does not mean "unless .012, .013, .031." IOW, it means that the use of force is not justified [to one who provokes], unless (a) or (b). The criteria in (a) and (b) are more restrictive, in a sense, than the criteria in .012, .013, and .031. One who provokes is not entitled to "stand ground and use force," but must either try to extricate or capitulate. IOW, a person who provokes must attempt to extricate, or must de-escalate the use of force - and THAT just to obtain the right to use force in self defense. A person who provokes the use of force is not justified in the use of force in self defense, unless (a) or (b), and if (a) or (b), then their use of force in self defense is justified.

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776.032 Immunity from criminal prosecution and civil action for justifiable use of force (http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=776.032&URL=0700-0799/0776/Sections/0776.032.html).—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force,

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776.012- Use of force in defense of person (http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.012.html)

However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or(2) Under those circumstances permitted pursuant to s. 776.013.

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776.041 Use of force by aggressor (http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.041.html).—T

The justification described in the preceding sections of this chapter is not available to a person who:

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

If you check the thread on unreleased discovery material, it seems that Bernie de la Rionda and friends had another stab at Witness 2 in an interview that has not been released yet. That is the one who thought, at one time, she saw shadows running. Bernie mentioned this again at the second bond hearing as some sort of proof that Zimmerman chased Martin. I know it sounds ridiculous but that may be, along with Zimmerman's testimony, the entire prosecution case. It is inconceivable to me that DeeDee will make an appearance in court. They can't drop the case until after the Republican Convention in Tampa. If they do it after that, riots might help the Republicans in November.

I have been looking for the thread on unreleased discovery material and haven't found it. Do you have a link?

It does mean "unless (a) or (b)". It does not mean "unless .012, .013, .031." IOW, it means that the use of force is not justified [to one who provokes], unless (a) or (b). The criteria in (a) and (b) are more restrictive, in a sense, than the criteria in .012, .013, and .031. One who provokes is not entitled to "stand ground and use force," but must either try to extricate or capitulate. IOW, a person who provokes must attempt to extricate, or must de-escalate the use of force - and THAT just to obtain the right to use force in self defense.

A person who provokes the use of force is not justified in the use of force in self defense, unless (a) or (b), and if (a) or (b), then their use of force in self defense is justified.

I think I see it now. .041 means: Self defense doesn't apply if (1) or (2) holds unless (a) or (b) holds. The reference to earlier sections of the chapter was just put in to confuse people like me. >:(

So does the immunity hearing immediately end, with Zimmerman being denied immunity, if the judge finds it more likely than not that either (1) or (2) describes Zimmerman on Feb. 26?

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(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or(2) Initially provokes the use of force against himself or herself

I have been looking for the thread on unreleased discovery material and haven't found it. Do you have a link?

This is it. (http://forums.talkleft.com/index.php/topic,2150.0.html) The information about Witness 2 was in the opening article by Jeralyn:

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2. Audio recordings of 3/26 interview by state's attorney investigator O'Steen and John Guy of W1 or W2 (one of the sisters who saw a glance of one or two people running). Witness is now saying she saw people running left to right (which from her house would be south to north.) De la Rionda keeps referring to this, yet the only audio statements provided are those by SPD and FDLE (3/1, 3/9, 3/20) and in the 3/20 interviews they retracted this. What happened in one week to make one of them change their mind, and why don't we have the actual interview? (p. 29 of 284 page discovery)

I think I see it now. .041 means: Self defense doesn't apply if (1) or (2) holds unless (a) or (b) holds. The reference to earlier sections of the chapter was just put in to confuse people like me. >:(

So does the immunity hearing immediately end, with Zimmerman being denied immunity, if the judge finds it more likely than not that either (1) or (2) describes Zimmerman on Feb. 26?

The jury instruction is much more clear than the statute. It doesn't refer to "earlier sections" as what is being denied as basis for justified use of force. It says "However, the use of deadly force is not justifiable if you find: ... (Defendant) initially provoked the use of force against [himself] [herself], unless: [(a) or (b)]." I assume the "deadly" word would be removed if the person is asserting self defense for use of non-deadly force. Anyway, by not referring to the language of .012, .013 or .031, the jury instruction operates so that those sections aren't available to a person who provoked the use of force against himself. BUT, self defense is still available under those (a) or (b) exceptions - to save your own life, or after an unavailing retreat/capitulation.

I think the answer to your question is that is Zimmerman is found to have provoked the use of force, he's denied immunity, because he's then under .041, and if he's under .041, 776.032 immunity is not available. And yes, the standard of proof is "preponderance," that is, "more likely than not." This standard of proof applies for all elements of the defense or negation of the defense, at a pretrial hearing on the merits.

The hearing doesn't end - it continues until all the evidence is in. Then the judge retires to compose his opinion. If he finds it more likely than not that Zimmerman provoked the use of force against himself, then there is no right to 776.032 immunity.

I think the answer to your question is that is Zimmerman is found to have provoked the use of force, he's denied immunity, because he's then under .041, and if he's under .041, 776.032 immunity is not available. If he finds it more likely than not that Zimmerman provoked the use of force against himself, then there is no right to 776.032 immunity.

I disagree. Zimmerman can provoke the use of force and still be justified in his use of force under 776.012, which makes him eligible for immunity under 776.032. All he has to do is be justified under 776.012. If he had no lesser means at his disposal to stop TM's attack, and he could not extricate himself to stop the attack, and he's the aggressor, he's justified under 776.012 . That's the argument O'Mara is making and I think he's right.

The only thing an aggressor can't claim is immunity under Stand Your Ground, 776.013. GZ doesn't need it. 776.041 doesn't preclude an aggressor being justified under 776.012 provided he meets one of the two criteria and Zimmerman does, he couldn't get away and had no lesser means to stop the attack. Thus, he fits under 776.12 and is immune under 776.032.

I disagree. Zimmerman can provoke the use of force and still be justified in his use of force under 776.012, which makes him eligible for immunity under 776.032. All he has to do is be justified under 776.012. If he had no lesser means at his disposal to stop TM's attack, and he could not extricate himself to stop the attack, and he's the aggressor, he's justified under 776.012 . That's the argument O'Mara is making and I think he's right.

The only thing an aggressor can't claim is immunity under Stand Your Ground, 776.013. GZ doesn't need it. 776.041 doesn't preclude an aggressor being justified under 776.012 provided he meets one of the two criteria and Zimmerman does, he couldn't get away and had no lesser means to stop the attack. Thus, he fits under 776.12 and is immune under 776.032.

We disagree then. I don't think 776.041(2)(a) or (b) loop back to 776.012. If one is an aggressor using force in self defense, one is in 776.041. One's use of force can be justified within the language of 776.041, which is not the same terms allowed in 776.012.

We disagree then. I don't think 776.041(2)(a) or (b) loop back to 776.012. If one is an aggressor using force in self defense, one is in 776.041. One's use of force can be justified within the language of 776.041, which is not the same terms allowed in 776.012.

I don't think O'Mara is arguing that Zimmerman was the aggressor.

IANAL, but doesn't .041 basically say:

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Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:(snip)unless:(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant;

Isn't .041 negated if MOM can show that (a) is true? Allowing for .012 to still apply?

Of course he isn't. We're talking about anticipated arguments of the state.

Do you have any legal support for your position? I think it is contrary to the wording of the statutes. An aggressor can clearly still fit under 776.012. And someone who fits under 776.012 is entitled to immunity under 776.032. Only an aggressor who doesn't fall within (a) or (b) of 776.041 is precluded from using deadly force. If GZ is not the aggressor, or if he is, but he had no lesser force at his disposal or couldn't otherwise extricate himself to avoid the danger he perceived from Trayvon's attack, he's immune under 776.032.

It's not that 776.041 is negated, it's that it doesn't preclude him from being justified under 776.012 if he meets one of the two criteria in 776.041.

Bad phrasing on my part, but I think I understand. I meant the restrictions that .041 places on a defendant using the preceding sections don't apply (negated) if (a) can be show to be true. Sorry, not a lawyer.

Of course he isn't. We're talking about anticipated arguments of the state.

Do you have any legal support for your position? I think it is contrary to the wording of the statutes. An aggressor can clearly still fit under 776.012. And someone who fits under 776.012 is entitled to immunity under 776.032. Only an aggressor who doesn't fall within (a) or (b) of 776.041 is precluded from using deadly force. If GZ is not the aggressor, or if he is, but he had no lesser force at his disposal or couldn't otherwise extricate himself to avoid the danger he perceived from Trayvon's attack, he's immune under 776.032.

As for the argument that Zimmerman was the aggressor, that's the only way to get Zimmerman under 776.041 in the first place. If O'Mara is arguing that Zimmerman was not the aggressor, then I agree that 776.012 applies.

The cases I've read on the interplay between 776.041(2) and 776.012 (leading to 776.032 immunity) have all denied immunity, but do tend to adopt your position on the interplay, for the sake of argument. I'm not finding the case that I have in mind, but parts of it can be read the other way - that being in 776.041 precludes immunity even if the (a) or (b) exception is found. Ahhh, here it is, State v. Dooley Denial of 776.032 Immunity (http://www2.tbo.com/mgmedia/file/257/trevor-dooley-ruling) (May 11, 2012).

But, the plain language of 776.041 is that the justification is found if the conditions are met, that is, that the use of force is justified. It does not say that immunity also attaches, just that at some level or at t turn of events in a fight, one has a right to use force in self defense. 776.041 contains all of the elements necessary to find the use of force justified for an aggressor., There is no need to look outside of it. The immunity statute, 776.032, provides immunity from arrest, etc. to a person who meets the requirements of 776.012, 776.013 or 776.031. It could, but does not mention a grant of immunity to a person who meets the justified use of force per 776.041.

I think that is deliberate, and necessary. Assume a fight with no deadly force, but plenty of damages on both sides. Assume one party is the aggressor, but broke off, but his opponent came back for more. Both sides have claims against each other. The law would not give the aggressor immunity from arrest, or from civil action, because the aggressor in fact committed battery, and caused damage.

Isn't .041 negated if MOM can show that (a) is true? Allowing for .012 to still apply?

Yes. 776.041 is a statutory exception to 776.012. If GZ establishes at an immunity hearing by a preponderance of the evidence that either (a) or (b) apply, he has not surrendered his right to claim self defense and 776.041 doesn't operate as an exception to preclude him from falling within 776.012. So long as he falls within 776.012, he can claim immunity under 776.032.

Darling v. State, 2012 (http://www.talkleft.com/zimm/darling.pdf)

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Justification for using deadly force in self defense, which includes the "stand your ground" defense, does not apply to a person who provokes the attack. § 776.041(2), Fla. Stat. (2007). There are only two exceptions to this rule: (1) where there is no means of escape other than the use of deadly force, or (2) if the provoking person withdraws from physical contact or unequivocally indicates his desire to withdraw from the confrontation and the alleged victim continues or resumes the use of force. Id. Moreover, the "stand your ground" law specifically requires that the person invoking the defense "not [be] engaged in an unlawful activity."

Justification for using deadly force in self defense, which includes the "stand your ground" defense, does not apply to a person who provokes the attack. § 776.041(2), Fla. Stat. (2007). There are only two exceptions to this rule ...

Darling v. State, 2012 (http://www.talkleft.com/zimm/darling.pdf)

Just to repeat, reiterate and reinforce my point of view, I agree that the use of force is justified under those circumstances. But 1) those circumstances are defined in 776.041, and 2) there exist situations where the use of force is justified, but immunity is not justified. In a case where one party to the fight is dead, the divergence between justified use of force and immunity is hard to distinguish - but just think about damages the aggressor causes (and the agressor/person who provokes is by definition committing a criminal act) before deciding to call off the fight, only to be denied the attempt to break off. he is justified in defending himself, but that doesn't mean he has no liability for the damages he created by being the aggressor in the first place.

The cases I've read on the interplay between 776.041(2) and 776.012 (leading to 776.032 immunity) have all denied immunity, but do tend to adopt your position on the interplay, for the sake of argument. I'm not finding the case that I have in mind, but parts of it can be read the other way - that being in 776.041 precludes immunity even if the (a) or (b) exception is found. Ahhh, here it is, State v. Dooley Denial of 776.032 Immunity (http://www2.tbo.com/mgmedia/file/257/trevor-dooley-ruling) (May 11, 2012).

CBoldt, read Dooley again. It says immunity would apply if he established one of the exceptions and fit within 776.012. Dooley did neither:

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However, a defendant is not entitled to rely on § 776.012 or § 776.013(3) if the defendant initially provokes the use of force against himself or herself, subject to two exceptions. Fla. Stat. § 776.041 (2011). First, an initial aggressor can be justified in using force if the force exercised by the other party is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape. Fla. Stat. § 776.041(2)(a). Second, an initial aggressor can rely on the statutes if he or she withdraws from physical contact and indicates the withdrawal to the other party who continues the use of force against him or her. Fla. Stat. § 776.041(2)(b). As such, in addition to having to satisfy either § 776.012 or § 776.013(3), a defendant who initially provoked the use of force against himself or herself would also have to prove that he or she satisfied one of these exceptions to be entitled to immunity.

Dooley's immunity wasn't granted because failed to prove by a preponderance he fit within the 776.041 exceptions.

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Defendant has failed to prove by a preponderance of the evidence that he is entitled to immunity from prosecution. First, the Court finds that Defendant has failed to prove that he met the requirements of either § 776.012 or § 776.013(3). Second, the Court finds that even if Defendant had satisfied either statute, Defendant would not be entitled to immunity because he failed to prove that he is not barred from relying on the immunity statutes pursuant to § 776.041.

The judge said 776.012 didn't apply because the killing occurred during a struggle for the weapon and not during an attack on Defendant Dooley. " Because Defendant was not under attack, but was struggling for the weapon, there was no reasonable belief that deadly force was required."

On 776.041 the court stated:

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Generally, a defendant who initially provokes the use of force against himself cannot rely on § 776.012 or § 776.013(3). Fla. Stat. § 776.041. However, a defendant can rely on the statute if he or she proves that the other party’s responding force is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape; or if the defendant withdraws from physical contact and indicates the withdrawal to the party who continues the use of force. Fla. Stat. § 776.041(2); see also Darling v. State, 37 Fla. L. Weekly D506 (Fla. 3d DCA Feb. 29, 2012).

The court denied the immunity because he failed to satisfy 776.012 (aside from aggressor issues) and:

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Further, he did not prove that he was still entitled to the use of force even if he was the initial aggressor because (1) the force exercised by Mr. James was so great as to create fear of imminent death or great bodily harm and Defendant exhausted every reasonable means of escape; or (2) Defendant withdrew from physical contact, indicated the withdrawal, and that Mr. James continued the use of force.

Don't overlook the inferences that can be made. Zimmerman called the police before embarking on his quest to keep Martin in sight, for example.

From your remark above, I take it you are inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman. You arrive at this point because you don't find Zimmerman credible, so when he says or implies that he did not provoke the use of force, you think that is probably a false statement.

Zimmerman calling the police is evidence that he called the police, but I'm not hearing the part that firmly establishes that Zimmerman very much wanted to avoid any active role in making sure that Martin was still around there when the police arrived.

As for me (as opposed to nomatter_nevermind) being "... inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman...", it's not being inclined to believe it, it's being willing to consider the possibility.

Bad phrasing on my part, but I think I understand. I meant the restrictions that .041 places on a defendant using the preceding sections don't apply (negated) if (a) can be show to be true. Sorry, not a lawyer.

You are doing just fine. Not everyone is a lawyer, and these forums are designed to help make the law understandable to those who are not. You got the principle right -- the choice of words is probably not that important.

As for me (as opposed to nomatter_nevermind) being "... inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman...", it's not being inclined to believe it, it's being willing to consider the possibility.

Since there is no evidence of that, you may not make that speculation here. Only speculation supported by disclosed facts is allowed. And this thread is about the immunity hearing.

It confirms what Judge Hirsch wrote in Wyche (http://www.talkleft.com/story/2012/4/12/194725/132), that even if SYG is denied pre-trial, it can be raised before the jury.

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By denying dismissal of the information, the trial court concluded that petitioner could not avoid prosecution under the facts as presented at the evidentiary hearing, but Mederos may raise as an affirmative defense at trial the claim that he cannot be convicted given the Stand Your Ground Law. Our denial of the petition, therefore, is without prejudice to the raising of the Stand Your Ground defense at trial. See Peterson, 983 So. 2d at 29 (A party claiming immunity whose motion to dismiss was denied "is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.").

It also confirms that the defendant can seek a writ of prohibition after the denial of a SYG motion and before trial.

Besides saying that Dooley generally supported your point of view (for the sake of argument, because it didn't apply the rule you advocate) I said that Dooley has parts that can be read for the opposite of what you blockquoted.

Here, the Court finds that even if Defendant had satisfied the elements of § 776.012 or § 776.013(3), he would not be entitled to immunity because he failed to prove that he did not provoke the use of force against him. FN5

FN5 The argument could also be made that Defendant did not prove he was not committing or attempting to commit the forcible felony of aggravated assault, which would also prohibit him from relying on the justification statutes. Fla. Stat. § 776.041(1). However, because the Court finds Defendant did not prove entitlement to rely on the justification statutes based on § 776.041(2), this Court need not make that analysis.

Since the Defendant did not prove that he was not the initial aggressor, he is prohibited from relying on either § 776.012 or § 776.013(3).

Courts fairly commonly conflate principles that can diverge, when those principle don't diverge in the case at hand. In this case, no immunity was allowed, so the case doesn't provide an example of a person being an initial aggressor (committing a crime), then being granted immunity. It certainly (and strongly) suggests that is possible. But, it also denies immunity on the grounds that defendant hadn't shown a predicament that results in reasonable fear of death or serious injury, which would preclude immunity under 776.012 and 776.013, too.

I have a feeling the combination we are discussing, an initial aggressor either backing off unsuccessfully, or having force escalated to the point of reasonable fear of death; is uncommon. I haven't found a case that grants legal immunity to an aggressor.

The opinions we are both citing are recent. Here is a collection of older cases: Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense (http://www.ohio.com/blogs/akron-law-cafe/akron-law-cafe-1.295890/florida-cases-interpreting-section-776-041-person-who-initially-provoked-incident-may-not-claim-self-defense-1.297242) - Akron Law Cafe - Ohio. Just FYI. I don't think it aids our debate, but it was a mildly interesting collection.

I see you are leaving the aggressor discussion (took me awhile to find the cites in Dooley, compose a reply, etc., and I'm not inclined to just junk the above.)

My apologies if you feel I have mislead anyone into misunderstanding you.

I was replying to the post by cboldt about inferences that supposedly can be made about Zimmerman's call to the police, a post in which it was said directly to and about you--

"From your remark above, I take it you are inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman."

I suspected that when I pointed out that Zimmerman's phone call to the police was no guarantee of his not making a mistake later on that I might have something similar said in reply to me, so I was trying to head that off at the pass, while indicating that, though it was a direct quote of cboldt talking about you, I wasn't talking about cboldt talking about you, I was anticipating the possibility of cboldt talking about me.

Zimmerman is the one with the injuries. There are witnesses that put TM on top of GZ. GZ called the police asking for help. GZ was screaming for help--picked up on the 911 calls. Etc.

I understand that you don't find Zimmerman credible, but you don't have to like him or even really believe him to analyze the evidence available.

And your problem is you have no evidence to back up your theory. What little there is backs up GZ.

The reference to the screams hurts your overall argument. The evidence it was Zimmerman is much weaker than that for the other facts you cite. If I were the judge at the immunity hearing or trial, I wouldn't let any identification of the distant cell phones screams in as evidence. There is no reason to believe anybody is capable to doing such an identification. Other attempts, based on circumstances, of assigning the screams to Martin or Zimmerman also are unconvincing to me.

The reference to the screams hurts your overall argument. The evidence it was Zimmerman is much weaker than that for the other facts you cite. If I were the judge at the immunity hearing or trial, I wouldn't let any identification of the distant cell phones screams in as evidence. There is no reason to believe anybody is capable to doing such an identification. Other attempts, based on circumstances, of assigning the screams to Martin or Zimmerman also are unconvincing to me.

What?

It's fairly simple. From the earliest, GZ said he yelled for help. The 911 calls pick up someone yelling for help. The jury draws the inference.

I disagree. Zimmerman can provoke the use of force and still be justified in his use of force under 776.012, which makes him eligible for immunity under 776.032. All he has to do is be justified under 776.012. If he had no lesser means at his disposal to stop TM's attack, and he could not extricate himself to stop the attack, and he's the aggressor, he's justified under 776.012 . That's the argument O'Mara is making and I think he's right.

The only thing an aggressor can't claim is immunity under Stand Your Ground, 776.013. GZ doesn't need it. 776.041 doesn't preclude an aggressor being justified under 776.012 provided he meets one of the two criteria and Zimmerman does, he couldn't get away and had no lesser means to stop the attack. Thus, he fits under 776.12 and is immune under 776.032.

I assume you are saying that 776.013 (3) is unavailable to the aggressor.

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(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Why does provoker = aggressor? Zimmerman reaching into his pocket might have provoked from Martin what seemed to the latter a reasonable response of punching Zimmerman, but I don't see that making Zimmerman an aggressor. Even if he were the "aggressor", why would that make Zimmerman engaging in unlawful activity? Wouldn't a separate charge have to be filed to cover the unlawful activity? In summary, I don't see why appealing to .013(3) is ruled out for Zimmerman.

I thought, from another thread, that there was general agreement that .013(3) could be excised from 776 entirely and not change anything. Am I mistaken about that?

Why does provoker = aggressor? Zimmerman reaching into his pocket might have provoked from Martin what seemed to the latter a reasonable response of punching Zimmerman, but I don't see that making Zimmerman an aggressor. Even if he were the "aggressor", why would that make Zimmerman engaging in unlawful activity? Wouldn't a separate charge have to be filed to cover the unlawful activity? In summary, I don't see why appealing to .013(3) is ruled out for Zimmerman.

Your theory that a defendant could be denied immunity for performing a perfectly legal act with no intent to attack or threaten the other person is, to me, crazy. I can see it now: "Sorry sir, but even though you did nothing wrong, and were only protecting yourself, you can't seek immunity because you're a dead wringer for a well-known viscous gangster, and your resemblance provoked the victim to attack you, believing you'd come to kill him."

Your theory that a defendant could be denied immunity for performing a perfectly legal act with no intent to attack or threaten the other person is, to me, crazy. I can see it now: "Sorry sir, but even though you did nothing wrong, and were only protecting yourself, you can't seek immunity because you're a dead wringer for a well-known viscous gangster, and your resemblance provoked the victim to attack you, believing you'd come to kill him."

How in this world did you make me into this strawman? Explain to me my "theory" of how an inadvertent provoker of an attack against himself would be denied immunity.

How in this world did you make me into this strawman? Explain to me my "theory" of how an inadvertent provoker of an attack against himself would be denied immunity.

Though I was obviously exaggerating to bring into focus how untenable I think your position is, how is reaching for a cell phone any less innocent than happening to look like a criminal? Didn't you claim that because Zimmerman went to get his cell phone, and Martin may have mistakenly thought he was going for a weapon, Zimmerman provoked Martin?

Oh, I think you did:

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The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant.

Would it be the prosecution's responsibility to have to prove George was the aggressor?

At trial, absolutely. And I don't believe they can do it. But even if he is the aggressor, he can still prevail under 776.012 if one of the exceptions apply.

At the immunity hearing, GZ has to establish by a preponderance of the evidence that his use of force was justified under 776.012 or 776.013, and , if the state raises the aggressor issue, that he is not subject to the bar in 776.041, either because he did not provoke TM's attack or because one of the exceptions apply. O'Mara believes he can establish by a preponderance that GZ is entitled to immunity under 776.032 through 776.012.

(edited to distinguish between burden at trial and burden at immunity hearing.)

I described a hypothetical situation where Zimmerman reaching for the cellphone was accepted by a judge as a provocation that would trigger .041 which would require that Zimmerman not stand his ground in order to be granted a self defense acquittal at a trial The provocation doesn't seem to have any bearing on .012 which can lead to immunity for Zimmerman under .032. I agree that is seems silly that someone who stood his ground could be granted immunity, preventing a trial where he would be convicted because he had no right to stand his ground since he inadvertently provoked his attacker . This isn't the first time that 776 is noted to have seemingly contradictory, redundant and confusing sections. Maybe both .013(3) and .041 should be ditched.

I apologize if I seem to be attacking you; I only intend to attack your arguments. I don't think it's possible to inadvertently provoke an attacker when "provoke" is used within the meaning of the the self-defense statutes. The only time "provoke" is used is in section 776.041, which bares the title "Use of force by aggressor." So to answer to your question, "Why does provoker = aggressor?": Because that's what the statute requires. I suppose it's possible a judge could decide that Zimmerman's reaching for his cellphone was provocation that would trigger 776.041. Judges make legal errors all the time, even ones that are that obviously wrong.

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If you insist on keeping up the attack against me, explain why using .012 to define a provocation is wrong. Jeralyn has used it that way also.

I apologize if I seem to be attacking you; I only intend to attack your arguments. I don't think it's possible to inadvertently provoke an attacker when "provoke" is used within the meaning of the the self-defense statutes. The only time "provoke" is used is in section 776.041, which bares the title "Use of force by aggressor." So to answer to your question, "Why does provoker = aggressor?": Because that's what the statute requires. I suppose it's possible a judge could decide that Zimmerman's reaching for his cellphone was provocation that would trigger 776.041. Judges make legal errors all the time, even ones that are that obviously wrong.

I'm not sure what you mean. 776.012 doesn't mention provocation.

I based the hypothetical judge's finding Zimmerman provoked Martin according to .012 from reading this posting on the main site. (http://www.talkleft.com/comments/2012/8/13/124445/958/65#65)In particular:

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Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ, Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman. (Statute<.012>)

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

In order for Trayvon to have been justified in his use of non-deadly force against GZ, he had to reasonably believe he was in imminent danger of a physical attack by Zimmerman. He can't just have unsure what Zimmerman up to. And the provocation cannot be the result of something GZ did earlier, like following him. Being followed does not allow one to respond with a punch in the nose or hitting the pursuer's head against the ground. We've seen no evidence of that from the State or an eyewitness as to GZ provoking the use of force by TM against him.

Obviously Jeralyn didn't mention and probably doesn't believe that Zimmerman's reaching for something in his pocket is a provocation satisfying "Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman". However I think it is in the possible realm of judicial opinion. The failure of .041 to spell out what provocation means is a failing of that statute, although you make a pretty good case that it means an actual "aggressor" regardless of the perhaps reasonable impressions of the person provoked. This argument is reminiscent of the one concerning the reasonableness of Zimmerman's fear of great harm to himself when he shot Martin despite, if you so believe, he didn't have serious injuries. That is why standards of proof for the decisions made by the trier of fact are so important.

Your problem as I see it is that the law says you may meet force with force. In other words--someone reaching for a phone doesn't give you the right to shoot them or try to beat the living snot out of them. It might give you the right to grab them until you're sure it's just a phone without being charged for assault and or battery.

It is simply cherry picking to say TM was provoked by GZ "reaching for his phone". One could also say GZ was provoked to reach for his phone by TM's action of approaching him from the dark. The confrontation began when TM came out of the dark and spoke to GZ which set everything else into motion. Had TM remained from where he came it never would have happened. GZ has a strong case for traditional self defense.

You have a good point that what J* said does indicate that if the victim reasonably believed the defendant was threatening an imminent physical attack, the defendant provoked the attack. I would respectfully suggest to Jeralyn that she might want to reconsider. Whether or not the victim would be entitled to a claim self defense is irrelevant to whether the defendant can claim of self defense.

I did not say that and I'm deleting your comment that did. I said Trayvon was only justified in using force against GZ if he reasonably believed he was in danger from GZ's imminent use of force against him.

The point being, even if Trayvon had such a belief, and it was not one a reasonable person in his situation would have, then he was not justified in physically attacking GZ. If he wasn't justified in physically attacking GZ, then GZ can not be held to be an aggessor, because he didn't provoke Martin's attack and an aggressor is one who provoked the victim's use of force against him.

I've always said this case isn't about whether Trayvon could claim self-defense had he lived. I'm discussing whether the argument that GZ was an aggressor preventing him from asserting 776.013 as a basis for immunity under 776.032, which some anticipate the state will make, has any validity. (O'Mara has said he is not raising 776.013 but 77.012, which is what prompted the discussion in the first place: Why wouldn't O'Mara use 776.013, since GZ is not the aggressor?)

I've also deleted the comment about forcible felonies. It is clear that section of 776.041 does not apply to this case as GZ is not charged with an independent forcible felony and I spent weeks making sure people understood this and didn't bring that section up. Even though you may have brought it up by way of analogy, it confuses the issues and leads to misunderstanding. 776.041 says (1) or (2) and (2) (a), the section under discussion here, applies to one who "initially provokes the use of force against himself or herself"-- no further qualifiers.

I suggest you and Ricky respond to each other without bringing in what I said unless it's a direct quote in context, because if I think you are misstating what I said, I'm going to delete the comment as I don't want a view I disagree with or did not endorse represented as being my view. Thanks.

I did not say that and I'm deleting your comment that did. I said Trayvon was only justified in using force against GZ if he reasonably believed he was in danger from GZ's imminent use of force against him.

* * *

I suggest you and Ricky respond to each other without bringing in what I said unless it's a direct quote in context, because if I think you are misstating what I said, I'm going to delete the comment as I don't want a view I disagree with or did not endorse represented as being my view. Thanks.

I was responding to a direct quote, namely:

Quote

Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ, Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman.

I assumed that you were using the word "provoked" as it's used in 776.014(2). You did, after all, say that the action of putting Martin in reasonable fear of a imminent physical attack would make Zimmerman the aggressor, which seems to be a reference to the title of that subsection. I apologize if I misrepresented what you meant, but I don't think my assumptions about your meaning were unreasonable.

I'm glad to learn you don't agree with the view that if Martin had the right to self defense, then Zimmerman provoked the violence (within the meaning of 776.014(2)); it is, after all, wrong, as I've been saying all along to RickyJim.

The Justifiable Use of Force law, Florida 776 (http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html), apparently has at least two functions. It guides a judge in making up a special jury instruction for cases where self defense might be used as a justification of force used and it can also guide a judge in other hearings related to the use of force (sections .032 and .085). I will restrict this to trying to understand what it says about justification for use of deadly force in the Zimmerman case as considered at the immunity hearing. The main thing it repeats, in one form or another, several times is, JUDF - He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

The list of forcible felonies is given is section .08. In section .012, JUDF is given without restriction with the added bonus that the user of JUDF had no duty to retreat. JUDF and the bonus are again given in .013(3) but this time with the restriction that it applies to, "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be". I believe that the word other was inserted because most of .013 is about home protection.

In .041, JUDF, without the part about forcible felonies and the bonus, is granted to "aggressors". Apparently the latter means people who are committing or escaping from a forcible felony or somebody who "Initially provokes the use of force against himself or herself". No explanation is given for this quoted phrase in 776 and those who have read this thread will agree, I think, that an elucidation is highly desirable. It is also emphasized in .041 that such "aggressors", who intend to use JUDF have to actively not stand their ground, i.e. attempt to escape or tell the assailant they give up.

.032 says that those who use JUDF according to .012, .012, 0.31 (latter not applicable in Martin/Zimmerman) are immune from criminal and civil action. It doesn't spell out that this must be done in a hearing before a judge and decided by a preponderance of evidence. Where is that spelled out? What I have just gone through shows that confusion may reign at a hearing concerning .032. Will the issue of Zimmerman being the initial provoker have to be disposed of negatively in order for him to get .032 immunity? If so, by what standard of proof? If O'Mara argues it is irrelevant since Zimmerman gets JUDF under .012, then why have the exceptions to JUDF mentioned in.013(3) and .041 of 776?

I was responding to a direct quote, namely:I assumed that you were using the word "provoked" as it's used in 776.014(2). You did, after all, say that the action of putting Martin in reasonable fear of a imminent physical attack would make Zimmerman the aggressor, which seems to be a reference to the title of that subsection. I apologize if I misrepresented what you meant, but I don't think my assumptions about your meaning were unreasonable. I'm glad to learn you don't agree with the view that if Martin had the right to self defense, then Zimmerman provoked the violence (within the meaning of 776.014(2)); it is, after all, wrong, as I've been saying all along to RickyJim.

But you inaccurately represented my quote by saying I was equating whether Zimmerman provoked TM with whether TM acted in self-defense. I never said anything about "whether or not the victim would be entitled to a claim self defense"." Self-defense is an affirmative defense used in court by one charged with a crime. TM is not charged with a crime, he is dead. He has no right to assert self-defense. Self-defense is inapplicable to him.

I was addressing whether GZ provoked TM. Under 776.041, the aggressor is one who provokes the victim's use of force against him. If TM's use of force against GZ was not lawful, as defined by 776.012, because he didn't reasonably believe he was in danger of an imminent attack by GZ, then GZ didn't provoke TM's attack. His actions were not ones that would cause a reasonable person to believe he was in danger of an imminent attack.

I have never suggested TM had a right of self-defense or that it was an issue in this case. That's a legal term with a specific meaning -- an affirmative defense available to someone charged with a crime. I referred to TM's use of force as being justified or not under under the statute 776.012 which sets forth when the use of force is justified.

And since I do not believe GZ was the aggressor, or that he provoked TM's use of force against him, I'd like to leave the topic as I think it is getting too much attention. The issue is whether GZ fits under 776.012 which entitles him to immunity under 776.032, unless he is barred from using 776.012 because of 776.041. 776.041 is inapplicable to him if he did not provoke TM's attack on him.

Ricky, I think your questions are addressed by the Dooley case (http://www2.tbo.com/mgmedia/file/257/trevor-dooley-ruling) CBoldt referred to from May, 2012. Although a District Court case, rather than an appellate case, and probably not of precedential value, it says that at an immunity hearing under 776.032, the defendant has to establish by a preponderance that his use of force was justifiable under 776.012 or 776.013, and that if he provoked the attack, he is not barred by 776.041 from claiming justification under 776.012.

The ruling was unfavorable to Dooley, so it's phrased in the negative, but it gives you an idea what at least one judge says is the burden:

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Defendant has failed to prove by a preponderance of the evidence that he is entitled to immunity from prosecution. First, the Court finds that Defendant has failed to prove that he met the requirements of either § 776.012 or § 776.013(3). Second, the Court finds that even if Defendant had satisfied either statute, Defendant would not be entitled to immunity because he failed to prove that he is not barred from relying on the immunity statutes pursuant to § 776.041.

Assume Dooley had the facts on his side, the finding would be the reverse, something like this:

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Defendant has established by a preponderance of the evidence that he is entitled to immunity from prosecution. First, the Court finds that Defendant has established that he met the requirements of § 776.012 or § 776.013(3). Second, the Court finds that having satisfied one of the two statutes, he is entitled to immunity because he has established he is not barred from relying on the immunity statute pursuant to § 776.041.

If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

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As such, in addition to having to satisfy either § 776.012 or § 776.013(3), a defendant who initially provoked the use of force against himself or herself would also have to prove that he or she satisfied one of these exceptions to be entitled to immunity.

This judge is accepting as true that Dooley provoked the attack. But his point is that the defendant has to show he is not barred by 776.041. If there was a dispute as to whether the defendant provoked the attack, I think this judge makes it clear he would say defendant had the burden to establish he did not provoke the attack by a preponderance.

Again that's just one trial judge, but it's very recent and seems to at least address your question, if I’m understanding your question correctly.

Jeralyn, do you think the State knew about and/or anticipated MOM finding/using the aggressor "loophole" in .041 - 2(a)? It seems it threw a lot of people, even experienced lawyers, for a bit of a loop. There have been so many lawyers claiming, essentially, that GZ couldn't get immunity w/o SYG or if he was the aggressor. I wouldn't be too surprised if even the State's understanding was somewhat lacking.

But you inaccurately represented my quote by saying I was equating whether Zimmerman provoked TM with whether TM acted in self-defense. I never said anything about "whether or not the victim would be entitled to a claim self defense"." Self-defense is an affirmative defense used in court by one charged with a crime. TM is not charged with a crime, he is dead. He has no right to assert self-defense.

Again, you said:

Quote

Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ, Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman.

I read ("read" in the past tense, since now I know better) that as pretty clearly equating "provok[ing] Trayvon's use of force against him" with "justifying TM's use of force against GZ." Reasonably believing one is in danger of an imminent physical attack is certainly the primary justification for self defense. In any event, what I (mistakenly, I now know) said you suggested in your original comment was:

Quote

...that if the victim reasonably believed the defendant was threatening an imminent physical attack, the defendant provoked the attack.

I didn't say Martin had asserted self defense.

Believe me, I'm not trying to get on your bad side, and I promise this will be the last I'll have to say on this matter.

Ricky, I think your questions are addressed by the Dooley case (http://www2.tbo.com/mgmedia/file/257/trevor-dooley-ruling) CBoldt referred to from May, 2012. Although a District Court case, rather than an appellate case, and probably not of precedential value, it says that at an immunity hearing under 776.032, the defendant has to establish by a preponderance that his use of force was justifiable under 776.012 or 776.013, and that if he provoked the attack, he is not barred by 776.041 from claiming justification under 776.012.

The ruling was unfavorable to Dooley, so it's phrased in the negative, but it gives you an idea what at least one judge says is the burden:

Assume Dooley had the facts on his side, the finding would be the reverse, something like this:

If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

This judge is accepting as true that Dooley provoked the attack. But his point is that the defendant has to show he is not barred by 776.041. If there was a dispute as to whether the defendant provoked the attack, I think this judge makes it clear he would say defendant had the burden to establish he did not provoke the attack by a preponderance.

Again that's just one trial judge, but it's very recent and seems to at least address your question, if I’m understanding your question correctly.

At trial, the burden would be on the state.

It seems to me that Judge Moody says that a defendant, whom the prosecution claims was the aggressor, has two paths to get immunity: he can either show by a preponderance of the evidence that he wasn't the aggressor (in the Zimmerman case, the initial provoker) or he can show by a preponderance of evidence that he actively tried to withdraw from the fight as spelled out in (a) and (b) of .041. Then in addition, he would have to show by a preponderance of evidence that he satisfied the JUDF condition given in .012 or .013(3) which may have been done in establishing (a). It seems much easier for Zimmerman to go the second route. To prove that he was more likely than not, not the initial provoker seems tough to me (but I know others here will disagree :D). Thanks for pointing out Judge Moody's decision. It looks like one of the best explanations of what immunity hearings are all about.

To prove that he was more likely than not wasn't the initial provoker seems tough to me (but I know others here will disagree :D).

If you mean Zimmerman might be the aggressor because he went for his cellphone, I have to (surprise!) disagree. How could anyone consider reaching for a cellphone aggression? The obvious purpose of subsection 776.014 is to limit the use of self defense by the person who started the fight. How is that purpose achieved by applying it to someone who showed no intention of harming the other person?

If Martin was afraid of Zimmerman's cell phone why didn't he shout out to witness 6 ' he's got a phone - he's got a phone!' when he had the opportunity?

Welcome back. I hope that the camping trip left you tanned and healthy. The point was that Martin didn't know that it was his cellphone Zimmerman was reaching for and who really knows what he said to Martin before getting punched? The prosecution has also signaled that they will try to make it plausible that Z chased M down and Z's following of M in the car was provocative. If the judge thinks it 50-50 that Z was the initial provoker, then that route to immunity is out. He is going to have to show JUDF is more likely than not in establishing .012 anyway, then why not use it also to establish the exception (a) of .041?

If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

Does the Judge decide both? That GZ's not barred by 776.041 and also fits under 776.012 before ruling if he will grant immunity? What I'm wondering is if MOM will try to use the immunity hearing to get the Judge to rule that GZ is not barred by 776.041. If the Judge does rule that would that carry over into a trial? By that I mean can MOM use that decision by the Judge and cut off any argument the State may make that GZ "pursued" and therefore was responsible for the outcome? That's quite a bit of their argument it seems.

I'm aware that the State has to accuse GZ of being the aggressor, but what else could they be trying to claim in the probable cause affidavit? Surely they would have to try and make such a claim in the immunity hearing, wouldn't they? Well, maybe not. This stuff gets complicated.

I'm not sure if this has been discussed here or on the blog side of things (to be honest I'm not even sure what search terms I would use to try and find something previously posted about it), my question is.. is a defendant mandated to take the stand at a self-defense immunity hearing (aka: Dennis Hearing?) in Florida? I've looked at Dennis v State and Patterson v State but I didn't find anything about the defendant taking the stand at all in either of those decisions - though my scan was quick. Anyone else have something solid stating a defendant would have to take the stand or is this just a conclusion that BDLR jumped to?

It is often argued that, because the defendant's state of mind is among the elements of justifiable use of deadly force, it cannot be proved to a preponderance of evidence without the defendant testifying. I don't believe there is any case law to that effect. If there were we would have heard of it by now. It will be up to the judge to decide if he should rule for the defense without hearing from the defendant.

As for Trayvon feeling threatened by George fumbling through his pockets, couldn't the exact same be said for Zimmerman?

Getting out of his truck to see where Trayvon went and get an address to give some insight as to where he was going - that doesn't necessarily seem indicative that he wanted to do anything other than that.

Running away, perceived by many is an admission of guilt. Viewed by Zimmerman that likely further led him to believe he was up to no good. With all the past break ins, watching him run away from the truck likely made him think once again this was the case.

The thing with burglars, petty thieves and such is that they always run away. The likelihood of a perceived burglar running away, and then coming back to confront you is slim, and why Zimmerman was probably caught off guard by this.

Sure, there was some poor decision making that night. But I can't imagine a jury equating calling the police, keeping tabs on a suspicious person to be anything more than that. GZ could have make better judgements, but under the guise he was chasing a property thief I don't think he expected this outcome.

On a side note, there has to be some remotely similar cases to this. I can imagine some vigilant homeowners out there confronting people lingering too close to their property or whatever, looking suspicious...anything recent?

I may have missed it, but what statute states that self-defense immunity is exclusively determined by a judge?

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776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

IANAL, but it seems that the statute only states criteria for immunity that needs to be met. It doesn't state who decides whether or not it's been met. In a trial a jury decides if a defendant is guilty or innocent. Shouldn't they have the option to decide if 776.032 applies? Granted, the case already got to the point of trial, but still... shouldn't the jury have the option to say "Hey, this guy is immune because of [776.032]. What are we doing here?"

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.

The jury does get to consider SYG immunity even if rejected by the judge in a pre-trial motion to dismiss. It considers immunity as an affirmative defense, a reason he would be not guilty. Latest cases:

By denying dismissal of the information (stand your ground motion), the trial court concluded that petitioner could not avoid prosecution under the facts as presented at the evidentiary hearing, but Mederos may raise as an affirmative defense at trial the claim that he cannot be convicted given the Stand Your Ground Law. Our denial of the petition, therefore, is without prejudice to the raising of the Stand Your Ground defense at trial. See Peterson, 983 So. 2d at 29 (A party claiming immunity whose motion to dismiss was denied "is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.").

There is no statute or criminal rule that says a judge determines immunity under 776.032 pre-trial by a preponderance of the evidence standard. That is how it's done, but it developed through case law, not a statute. The statute is silent as to how a defendant raises immunity after being charged. The Florida courts disagreed on procedure, and eventually, the pre-trial hearing/preponderance standard was decided to be the correct one. As one law review article says:

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Under case law, a precedent has been established whereby a defendant must prove entitlement to immunity by a preponderance of the evidence. This shifts the burden of proof from the prosecution to the defense. Florida’s statute granting immunity to persons acting in self defense goes beyond establishing a defense; it establishes a right not to stand trial. By forcing defendants to prove by a preponderance of the evidence that they are entitled not to face prosecution at all, the courts are essentially forcing them to do just that: face prosecution

I think Florida courts should have decided it the other way, and held that because the burden of proof in a criminal case always remains with the State to prove its case, including the absence of self-defense, the court should decide immunity by putting the burden on the state to prove by a preponderance of evidence the defendant is not entitled to immunity.

After a judge has denied immunity at a separate hearing, does the criminal trial jury have two kinds of acquittal on the grounds of self defense available to them: with and without immunity from future civil suits?

Who puts on their case first in the immunity hearing? Is it the state, as in a trial, or is it the defense, because they have the burden of proof? I think it would be to Zimmerman's advantage if it were the state.

The jury does get to consider SYG immunity even if rejected by the judge in a pre-trial motion to dismiss. It considers immunity as an affirmative defense, a reason he would be not guilty.

And if the jury decides that a defendant isn't guilty because he's immune does he then become immune from further prosecution and civil suits? Doesn't the 'immune' part of the statute 'kick in' at that point? Again, IANAL, but it seems to me if the statue is the reason a defendant isn't guilty then the entire statute should apply.

After a judge has denied immunity at a separate hearing, does the criminal trial jury have two kinds of acquittal on the grounds of self defense available to them: with and without immunity from future civil suits?

No. Civil immunity has nothing to do with this. In this context, the jury would be finding him not guilty of murder 2 or the lesser manslaughter because he fits the criteria for immunity from prosecution and was acting in self-defense.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force,

The immunity statute serves as an affirmative defense if employed this way -- a criminal jury only determines guilt (or failure to prove guilt).

I don't understand the reference to s. 776.032 in Talk Left's answer to my question. Since the jury can't grant immunity to future civil action, why isn't the acquittal on grounds of self defense as covered in s. 776.012, s. 776.013, or s. 776.031? If they do so acquit, can the defendant appeal the judge's pre jury verdict refusal to grant immunity to civil action?

The immunity statute serves as an affirmative defense if employed this way -- a criminal jury only determines guilt (or failure to prove guilt).

That really doesn't make sense to me although I have no doubt you are right about the law. It seems a jury can decide different levels of guilt but not innocence. By that I mean the jury can find the defendant guilty on many levels (lesser included charges), but can never find the defendant innocent on any level. Just not guilty. That seems very much like a presumption of guilt to me. i.e. He's either guilty of what he's been charged with or guilty of something else, or not guilty. But where in this does the presumption of innocence come in? A jury can never find someone innocent (immune)?

Juries decide whether the state or government has proved the charges beyond a reasonable doubt. If the state meets the burden, it returns a guilty verdict. If the state falls short in proving the charges beyond a reasonable doubt, it returns a verdict of not guilty. Those are the two choices.

A not guilty verdict can include:

** Based upon the evidence presented, we the Jury find that the defendant is absolutely 100% innocent.

** Based upon the evidence presented, we the Jury, cannot be absolutely sure that the defendant is innocent.

** Based upon the evidence presented, we the Jury are confident that the defendant is innocent.

** Based upon the evidence presented, we the Jury believe that the defendant is probably innocent. [More...]

** Based upon the evidence presented, we the Jury are not really sure one way or the other if the defendant is guilty or innocent.

** Based upon the evidence presented, we the Jury believe it is more likely than not that the defendant is guilty.

** Based upon the evidence presented, we the Jury believe that the defendant is probably guilty.

** We the Jury believe that the defendant is guilty but the evidence falls a little short and we cannot find that the defendant is guilty beyond a reasonable doubt.

For more on this see The Meaning of a Not Guilty Verdict (http://www.talkleft.com/story/2011/7/5/23620/67938) and The History of the Presumption of Innocence (http://www.talkleft.com/story/2003/01/12/153/23800)

Doesn't the presumption of innocence hold until and unless the jury finds that the state has met its burden of proof?

In other words, the defendent is presumed innocent and nothing changes that unless a jury says "guilty"?

If they say anything else, the presumption continues uninterrupted?

"Presumption of Innocence" basically means that criminal guilt must be determined beyond a reasonable doubt. Once a jury has given a not guilty verdict, it remains in effect but is not as relevant as the prohibition against double jeopardy. It certainly doesn't prevent civil action (in US law).

Doesn't the presumption of innocence hold until and unless the jury finds that the state has met its burden of proof? In other words, the defendant is presumed innocent and nothing changes that unless a jury says "guilty"?

I am wondering if the following would fly as a way to conduct the Immunity Hearing in April so that the defense would get more time to get discovery for the trial in June:

The defense proposes to the prosecution/judge that the Immunity Hearing deals only with the question of whether Zimmerman was justified in shooting Martin because he didn't have any other option to escape serious injury or death. In other words, there is no consideration of the issue of who was the initial aggressor; nor will there be of the malice element of second degree murder. This way, there would be no need for further discovery material, in advance of the hearing, with respect to Witness #8, the phones, or Martin's Twitter and Facebook (unless there is reason to believe his fighting skill is discussed there). I don't know of any current defense discovery requests, besides for samples of Martin's voice, that bear on what happened after the physical confrontation started. The prosecution would have to restrict their contradiction finding to those in Zimmerman's description of the fight. On the other hand, they would not have to defend Witness #8 under a possible heavy attack from the defense.

Is such an agreement for a stripped down Immunity Hearing possible under Florida law? If so, would both sides see enough advantage for them in it so they would agree?

The defense proposes to the prosecution/judge that the Immunity Hearing deals only with the question of whether Zimmerman was justified in shooting Martin because he didn't have any other option to escape serious injury or death. In other words, there is no consideration of the issue of who was the initial aggressor; nor will there be of the malice element of second degree murder.

I don't think the malice issue will be part of the immunity hearing anyway.

The American legal system is adversarial. As a rule, courts decide issues that are contested between parties. When parties to a dispute declare agreement on a fact, which is called 'stipulating', the court accepts the fact as true regardless of other considerations.

The prosecution could stipulate that a preponderance of evidence shows Martin was the initial aggressor, or both sides could agree to stipulate that the evidence on that point is evenly balanced. I don't know if the judge can reject such stipulations, but at least it would be unusual for her to do so.